A HISTORY AND ANALYSIS OF LAWS PROTECTING
NATIVE AMERICAN CULTURES
Marilyn Phelan*
1.
INTRODUCTION ...................................................................................................... 45
II. A TRUST RELATIONSHIP BETWEEN NATIVE AMERICANS AND THE FEDERAL
GOVERNMENT ....................................................................................................... 47
III. FEDERAL ACTS IMPACTING AND/OR PROTECTING NATIVE AMERICAN
CULTURES ............................................................................................................. 49
A.
B.
C.
D.
E.
Antiquities Act of 1906 ................................................................................. 49
National Historic Preservation Act of 1966 .................................................. 50
American Indian Religious Freedom Act of 1978 ........................................ 51
Archaeological Resources Preservation Act of 1979 .................................... 55
Native American Graves Protection and Repatriation Act of 1991 .............. 56
IV. UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY EXPORTED CULTURAL
OBJECTS OF 1995 ................................................................................................... 60
V. SUMMARY AND CONCLUSIONS .............................................................................. 63
1.
INTRODUCTION
A justice once reflected, the "greed and callous disregard for the property, history
and culture of others cannot be countenanced by the world con'.u:nunity" nor should it be
sanctioned by the courts. 1 There has long been concern among the Indian tribes in the
United States that courts and Congress have had a callous disregard for their history,
religion, property, and culture. They have pointed to a lack of interest in protectin~ their
religious practices and have referred to instances where their cultural properties were
confiscated and others wherein individuals, as well as the government, have interfered
with their spiritual exercises. 2 For example, during the early part of the 19 th century, the
"digging and removing [of] contents of Native American graves for reasons of profit or
* J.D., Texas Tech University; Ph.D, University of Texas; Adjunct Professor of Law, Fo=erly Paul
Whitfield Horn Professor of Law, Texas Tech University School of Law.
1. Autocephalous Greek-Orthodox Church v. Goldberg & Feldman Fine Arts, Inc., 917 F.2d 278,297 (7th
Cir. 1990) (Cudahy, -J., concurring).
2. H.R. Rpt. 101-877 at 13 (Nov. 16, 1990) (reprinted in 1990 U.S.C.CAN. 4367, 4372).
45
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curiosity [became a] common practice.,,3 Countless Indian burial sites were desecrated,
and thousands of Native American human remains and funerary objects were sold or
transferred and then housed in U.S. museums. 4 Federal laws and policies have conflicted
with Indian religious beliefs in three general areas 5 :
1. Sites sacred to Native Americans that were used in their religious ceremonies have been
designated as national parks belonging to the American public. As a result, Native
6
Americans no longer have access to a number of these sites.
2. Federal laws restrict the use of items sacred to Native Americans. For example, the Bald
and Golden Eagle Protection Act (BGEP A) 7 prevents Indians from hunting eagles and
from having eagle parts in their possession (except through a permit sgstem that currently
permits their very limited possession for use in religious ceremonies). Further, except for
members of the Native American Church, Native Americans originally could not use
peyote in their religious ceremonies. 9
3. Sometimes overzealous federal officials interfere in sacred ceremonies of Indian tribes,
10
and, at least in the past, no laws prohibited this.
While congressional interest in protecting and preserving Indian sites and ruins
originated at the turn of the 20 th century as part of an impetus to protect historical sites
and monuments generally within the United States,l1 there was continuing insensitivity
to Indian cultures throughout most of this century. During the 20th century, Indian tribes
persistently lobbied Congress for recognition of their rights, particularly for a
3. Id. at 10.
4. Id. These activities were at their peak during the 19th century and the early part of the 20th century.
In 1868, the [U.S.] Surgeon General issued an order to all Army field offices to send him Indian
skeletons .... This action, along with an attitude that accepted the desecration of countless Native
American burial sites, resulted in hundreds of thousands Native American human remains and
funerary objects being sold or housed in museums and educational institutions around the country.
For many years, Indian tribes have attempted to have the remains and funerary objects ...
returned to them. This effort has touched off an often heated debate on the rights of the Indian[ s]
versus the importance to museums of the retention of their collections and the scientific value of the
items.
Id.
5. See e.g. Bowen Blair, Student Author, Indian Rights: Native Americans Versus American Museums-A
Battle For Artifacts, 7 Am. Indian 1. Rev. 125 (1979).
6. Id.
7. 16 U.S.C. § 668 (2006).
8. For a discussion of the Department of the Interior's eagle permit system available to members of
federally recognized Indian tribes, see infra nn. 70-87 and accompanying text.
The [Department of the Interior] has preliminarily determined that under certain circutnstances it
[would pe=it] the Hopi Tribe to collect golden eaglets within Wupatki National Monument, a unit
of the National Park System, for religious ceremonial purposes. This rule [authorized] this activity
upon te=s and conditions sufficient to protect park resources against impai=ent, and consistent
with the [BGEPA].
66 Fed. Reg. 6516 (Jan. 22, 2001).
9. See e.g. u.s. v. Warner, 595 F. Supp. 595, 597 (D.N.D. 1984); Peyote Way Church of God, Inc. v.
Smith, 556 F. Supp. 632, 637 (N.D. Tex. 1983). There was an exception for Indian members of the Native
American Church because the use of peyote was central to, and the cornerstone of, religious practices of the
Native American Church. In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court ruled that
a state could deny unemployment benefits to an Indian who was fired for using peyote as part of his traditional
worship service. Id. at 890. The American Indian Religious Freedom Act, 42 U.S.C. § 1996a(b)(1) (2006),
discussed infra pt. ID(C), was amended in 1994 to pe=it Indians to use peyote in their religious ceremonies.
10. See e.g. Havasupai Tribe v. U.S., 752 F. Supp. 1471 (D. Ariz. 1990).
11. For a discussion of the Antiquities Act of 1906, see infra pt. ID(A).
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LAWS PROTECTING NATIVE AMERICAN CULTURES
47
congressional mandate that museums repatriate Native American human remains,
funerary objects, and cultural artifacts in museum collections. Finally, in 1990, the hard
work of the various tribes was rewarded when Congress officially acknowledged a need
for the protection of Native American cultures and the repatriation of Native American
human remains and cultural objects by enacting the Native American Graves Protection
and Repatriation Act (NAGPRA).12 This Act, which became effective in 1991, provided
some of the recognition and protection of Indian cultures Native Americans had long
sought.
_
This article is a summary and history of the legislative acts and judicial decisions
that considered and finally brought official recognition of a separate and distinct way of
life for Native Americans and a protection of their cultural heritage. The article also
compares NAGPRA with the international convention, the 1995 UNIDROIT Convention
on Stolen or Illegally Exported Cultural Objects,13 which, as part of its call for the
international repatriation of cultural property generally, endorses the repatriation of
sacred or communally important cultural objects that belong to, and are used by, tribal or
indigenous communities. 14
II.
A TRUST RELATIONSHIP BETWEEN NATIVE AMERICANS AND THE FEDERAL
GOVERNMENT
Article 1, Section 8, of the U.S. Constitution gives Congress the power to regulate
commerce "with foreign nations and among the several states, and with the Indian
tribes." Thus, Indian tribes have recognized sovereignty along with state and foreign
governments. The Indian Reorganization Act of 1934 (IRA)15 authorizes the Secretary of
the Interior to take land in trust for individual Indians and for federally recognized Indian
tribes. 16 Congress may preempt the operation of state law with respect to this Indian trust
land. 17 In Shivwits Band ofPaiute Indians v. Utah State Department of Tral1sportation, 18
the court balanced federal, tribal, and state interests against one another and concluded
that permitting a state to exercise control over Indian land would "threaten Congress'
overriding objective of encouraging tribal self-government and economic
development." 19
In the very recent case of Carcieri v. Salazar,20 the Supreme Court reversed a
decision of the First Circuit, Carderi v. Kempthorne,21 wherein the First Circuit had
12. 25 U.S.C. §§ 3001-3013 (2006).
13. UNIDROIT, Convention on Stolen or Illegally Exported Cultural Objects, http://www.unidroit.org/
eng1ishlconventions/1995culturalproperty/1995culturalproperty-e.htm (June 24, 1995).
14. Id. at art. 1(b).
15. 25 U.S.C. § 465 (2006).
16. Section 465 states: "[tJitle to any lands or rights acquired pursuant to this Act. _. shall be taken in the
name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired ...."
Id.
17. See N.M v. Mescalero Ap~che Tribe, 462 U.S. 324, 334 (1983).
18. 428 F.3d 966 (10th Cir. 2005).
19. Id. at 983 (citation omitted). An Indian tribe leased land it had placed in trust with the federal
government to an advertising enterprise for construction of outdoor billboards. The State of Utah opposed
construction of the billboard. The court denied the state the right to prevent the construction. Id. at 969,983.
20. 129 S.Ct. 1058 (2009).
21. 497 F.3d 15 (1st Cir. 2007).
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affirmed summary judgment for the Department of Interior when the state of Rhode
Island petitioned the court for review of a decision of the Department to accept a 31-acre
parcel ofland into trust for the benefit of the Narragansetts. The Narragansetts were not
recognized as a tribe until 1983. 22 The Supreme Court ruled that the Secretary of the
Interior's authority under the IRA to take land into trust for Indians is limited to Indian
tribes that were under federal jurisdiction when the IRA was enacted. 23
In Black Hills Institute of Geological Research v. South Dakota School of Mines &
Technology,24 a Native American sold rights to excavate on his land to the Black Hills
Institute of Geological Research. The land, located within the boundaries of the
Cheyenne River Sioux Indian Reservation, was held by the federal government in trust
for the Native American. During excavation, researchers from the Institute uncovered
mammoth remains and ten tons of 65 million year old bones from a Tyrannosaurus
Rex. 25 The fossil was the largest and most complete Tyrannosaurus Rex skeleton known
to man. The Institute paid the Native American $5,000 for the fossil and moved it to the
Black Hills Museum of Natural History for public display and research. 26 Later, upon
order of the U.S. Attorney for South Dakota, federal officers seized the fossil based on
the researchers having allegedly violated the Antiquities Act,27 which bans the removal
of antiquities from federal lands. 28 The IRA prohibits the sale of Indian land unless the
sale is approved by the Secretary of the Interior. 29 The court nullified the sale of the
fossil and ordered transfer of the bones to the Native American. 30
In Black Hills Institute of Geological Research v. Williams, 31 the court imposed a
due diligence requirement on a purchaser of Indian artifacts. It held that a party who has
knowledge of facts that would cast doubt upon the transferability of title to such artifacts
has a duty to investigate the title. It ruled "that a lack of caution and diligence . . .
22. The Narrangansett Tribe's ongoing efforts to gain recognition from the United States government
finally succeeded in 1983. In granting formal recognition, the Bureau of Indian Affairs (BIA) determined "that
the N arrangansett community and its predecessors have existed autonomously since first contact, despite
undergoing many modifications." 48 Fed. Reg. 6177, 6178. The BIA indicated that "[t]he tribe hard] a
documented history dating from 1614." Id.
23. Salazar, 129 S.Ct. at 1068.
24. 12 F.3d 737 (8th Cir. 1993); see also Black Hills Inst. v. Dept. ofJust., 967 F.2d 1237, 1238-1239 (8th
Cir. 1992); Black Hills Inst. v. Us. Dept. ofJust., 978 F.2d 1043 (8th Cir. 1992).
25. Black Hills Inst., 967 F.2d at 1238.
26. See S.D. Sch. ofMines & Tech., 12 F.3d at 739 (8th Cir. 1993); Black Hills Inst., 967 F.2d at 1239.
27. For a discussion of the Antiquities Act of 1906, see irifra pt. III(A).
28. The Black Hill Institute filed suit against the federal government contending that it had title to the
fossil. Black Hills Inst., 978 F.2d at 1044. The federal government asserted that it had ownership of the fossil as
trustee for the Native American. The federal government insisted that the Native American could not sell land
held in trust for him unless he obtained prior approval from the Secretary of the Interior. The government also
claimed that the fossil is an ingredient of the land and, as such, is land. As land, the court ruled that the federal
government held the fossil in trust for the Native American. S.D. Sch. of Mines & Tech., 12 F.3d at 741-743.
The Black Hills Institute and the Black Hills Museum of Natural History Foundation, Inc. filed a complaint in
the nature of a quiet title action to assert permanent ownership of the fossil. Black Hills Inst., 978 F.2d at 1044.
29. 25 U.S.C. § 465.
30. S.D. Sch. of Mines & Tech., 12 F.3d at 740. The Institute originally filed suit against the Department of
Justice contending that, after sei=e of the bones, the federal govemment stored this priceless treasure under
inadequate circumstances. Black Hills Inst. 967 F.2d at 1238. The court ordered the South Dakota School of
Mines and Technology to serve as custodian of the fossil until ownership could be determined. Black Hills
Inst., 978 F.2d at 1043.
31. 88 F.3d 614 (8th Cir. 1996).
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LAWS PROTECTING NATIVE AMERICAN CULTURES
49
amounts to bad faith.,,32 The court then held that "[Black Hills] Institute's failure to
diligently investigate whether the fossil [found on the Indian reservation] could be
alienated absent governmental approval . . . [prevented the Institute from being] a good
faith, bona fide purchaser.,,33
III. FEDERAL ACTS IMPACTING AND/OR PROTECTING NATIVE AMERICAN CULTURES
A.
Antiquities Act of 1906
Congress's first attempt to save historic treasures within the United States was its
34
This Act provides penalties for destroying or
35
damaging any historic ruins on public lands. It prohibits the appropriation, injury, or
enactment of the Antiquities Act of 1906.
destruction of any historic or prehistoric ruin or monument, or any object of antiquity on
lands owned or controlled by the federal government. 36 Congress enacted the Act in
response to vandalism that occurred at the Cas a Grande ruins in Arizona and to preserve
37
Mount Vernon in Virginia.
Still, because Indian lands are controlled by the federal
government, the Antiquities Act also prohibits the destruction or appropriation of Indian
38
ruins and antiquities. However, the Act is limited in its protection ofIndian artifacts in
that it subjects a person to penalties for the appropriation of any "ruin," "monument," or
"object of antiquity,,,39 and the definition of these terms is not clear.
In
Us.
v.
Diaz,40 a 1974 case, the court refused to affirm the conviction of a
person who took a facemask from an Indian reservation that had been placed there by the
41
Indian tribe after using it in religious practices.
The Ninth Circuit Court of Appeals
32. Id. at 616 (citation omitted).
33. Id.
34. 16 U.S.C. § 433 (2006).
35. Id. Under the act, permits are required to excavate upon federal property. These permits are granted by
the Secretaries of the Interior, Agriculture, and Army and are issued only to reputable institutions for scientific
or historic preservation purposes. Id. at § 432. The fine for appropriating historic or prehistoric ruins on
monuments is only $500. A violator also can be imprisoned up to ninety days. Id. at § 433.
36. The Act does not refer specifically to Indian lands. It pertains to "lands owned or controlled by the
Government of the United States." Id. at § 433. Because Indian lands were, and are, controlled by the federal
government, the Act covers excavation on Indian lands.
37. The Act authorizes the President to set aside historic places, landmarks, and structures, as well as other
lands of scientific value, as national monuments. 16 U.S.C. § 431 (2006).
38. Id. at § 433.
39. Id.
40. 499 F.2d 113 (9th Cir. 1974).
41. In Diaz, Diaz "appropriated ... face masks found in a cave on the San Carlos Indian Reservation." Id.
at 114. These masks later "were identified by a San Carlos medicine man as having been made [recently] by
another medicine man .... " Id. The masks "were used by the Apache Indians in religious ceremonies and that
after the conclusion of [the] ceremonies the artifacts traditionally were deposited in remote places on the
reservation for religious reasons ... [and were] never allowed off the reservation." Id. Diaz was convicted in a
federal district court under the Antiquities Act for appropriating objects of antiquity from government land.
According to a professor of anthropology who testified in the case, an " 'object of antiquity' [can] include
something that was made just yesterday if [it] relaters] to religious or social traditions of long standing." Id.
Diaz appealed his conviction, contending that the term "object of antiquity" is unclear in its meaning and that
the Antiquities Act is void due to vagueness. The appellate court declared the Antiquities Act to be
unconstitutionally vague and reversed the decision of the federal district court. Diaz, 499 F.2d at 115. The court
noted that the word "antiquity" can refer not only to the age of an object but also to the use for which the object
was made and to which it was put, subjects which, the court decided, likely would not be of common
knowledge.ld. at 114-115.
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ruled unconstitutional the Antiquities Act, which was the only federal statute at that time
providing for criminal penalties for taking Indian artifacts. The Act subjects a person to
penalties for the appropriation of an object of antiquity. Despite testimony from a
professor of anthropology that an " 'object of antiquity' [can] include [an object] that
was made just yesterday if it relaters] to religious or social traditions of long standing[,]"
the court ruled in Diaz that a person must know with reasonable certainty those objects
he or she may not take. 42
The Antiquities Act has not been repealed, even though it was declared
unconstitutional in Diaz. In a 1979 case, Us. v. Smyer,43 the Tenth Circuit Court of
Appeals upheld the conviction of an individual who excavated a prehistoric Mimbres
ruin at an archaeological site that was believed to be inhabited about A.D. 1000-1250.
The individual, Smyer, appealed his conviction, contending the Antiquities Act is vague
and, thus, unconstitutional. 44 The Tenth Circuit distinguished Diaz, noting that the Diaz
case involved newly created artifacts. According to the court in Smyer, a person of
ordinary intelligence should know that one may not excavate a prehistoric Indian burial
ground and appropriate artifacts that are 800-900 years old. The court ruled that, as
applied to the prosecution of the defendants for taking artifacts from ancient sites for
commercial motives, the Act was not unconstitutionally vague. 45
B.
National Historic Preservation Act of 1966
Congress declared in 1966 that "the spirit and direction of the Nation are founded
upon and reflected in its historic heritage" and that "preservation of this irreplaceable
heritage is in the public interest so that its vital legacy . .. will be maintained and
enriched for future generations of Americans.,,46 It enacted in that year the National
Historic Preservation Act (NHPA), 47 which authorized the Secretary of the Interior to
"maintain a National Register of Historic Places composed of districts, sites, buildings,
structures, and objects significant in American history, architecture, archeology,
engineering, and culture.,,48 Amendments to the NHPA in 1980, 1992, and 1994
included provisions requiring the Secretary to "establish a program and promulgate
regulations to assist Indian tribes in preserving their particular historic properties. ,,49 The
NHPA now mandates the Secretary of the Interior to "foster communication and
cooperation between Indian tribes and State Historic Preservation Officers in the
administration of the national historic preservation program to ensure that all types of
historic properties and all public interests in such properties are given due
consideration. ,,50 "A tribe may assume all or any part of the functions of a State Historic
Preservation Officer ... with respect to tribal lands ... if the tribe's chief governing
at 114.
43. 596 F.2d 939 (10th Cir. 1979).
44. Id. at 940.
45. Id. at 94l.
46. 16 U.S.C. § 470(b)(1) (2006); Id. at 470(b)(4).
47. Id. at § 470.
48. Id. at § 470a(a)(1)(A).
49. Id. at § 470a(d)(1)(A) (2006); see also 16 U.S.C. § 470-47l.
50. Id. at § 470a(d)(1)(A).
42. Id.
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LAWS PROTECTING NATIVE AMERICAN CULTURES
51
authority so requests [and] the tribe designates a tribal preservation official to administer
the tribal historic preservation program, through appointment by the tribe's chief
governing authority.,,51 "Properties of traditional religious and cultural importance to an
Indian tribe or Native Hawaiian organization may be determined to be eligible for
inclusion on the National Register.,,52
The NHP A has provided Indian tribes additional benefits in that the NHP A is
interrelated with the National Environmental Protection Act (NEP A), 53 and thus has
brought required tribal input into major federal projects. The NEPA mandates a federal
agency to take a hard look at the environmental consequences of a major federal action
before taking any action. 54 It requires the federal government to use all practicable
means "to improve and coordinate federal plans, functions, programs, and resources to
the end that the Nation may... preserve important historic, cultural, and natural aspects
of our national heritage . . . . ,,55 Federal agencies must analyze, to the fullest extent
possible, the potential impact on environmental and cultural values of those "major
Federal actions significantly affecting the quality of the human environment .... ,,56 To
meet this prerequisite, NEPA requires federal agencies to prepare an environmental
impact statement (EIS) before undertaking any major federal actions that may affect
significantly the quality of the human environment. Both NEP A and the NHP A must be
complied with in preparing the EIS when historic buildings are affected. 57 The Ninth
Circuit Court of Appeals 58 has stated that both acts are designed to insure that a federal
agency "stop, look, and listen before moving ahead.,,59 A federal project that involves
possible demolition of a building listed or eligible for listing, in the National Register
may be viewed as a major federal action. Under § 106 ofNHPA, the Advisory Council
on Historic Preservation (ACHP), a federal agency created by Congress, must be given a
reasonable opportunity to comment on the effect of federally assisted projects on historic
properties. This would include properties of traditional religious and cultural tribal
importance. 60 Thus, pursuant to NEPA and the NHPA, parties to a major federal project
must invite the participation of affected federal, state, and local agencies, but also any
affected Indian tribe, in federal projects that affect historical properties or cultures. 61
C.
American Indian Religious Freedom Act of 1978
A concern among Native American tribes that Congress and the general p~blic did
at § 470a(d)(2).
at § 470a(d)(6)(A).
53. 42 U.S.C. §§ 4331 et seq. (2006). The NEPA was enacted in 1969.
54. Id. at § 4332(c).
55. Id. at § 4331(b)(4).
56. Id. at § 4332(c).
57. See Preservation Coalition, Inc. v. Pierce, 667 F.2d 851,859 (9th Cir. 1982).
51. Id.
52. Id.
Id.
Id.
See 42 U.S.C. § 4332(c); 16 U.S.C. § 470--471.
See 42 U.S.C. § 4332(c); 16 U.s.C. § 470--471. Tribes are concerned about the recent Ninth Circuit's
decision in Navajo Nation v. u.s. Forest Serv., 535 F.3d 1058 (9th Cir. 2008), cert. denied, 129 S.Ct. 2763
58.
59.
60.
61.
(2009). The Ninth Circuit Court of Appeals ruled that the government-approved use of artificial snow for
skiing on a portion of a public mountain sacred in the religion of at least thirteen tribes does not violate NEPA
or the NHPA. Id. at 1080.
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not respect their religious practices and freedoms as well as the apparent ineffectiveness
of the Antiquities Act to protect Indian artifacts and ruins, led tribes to lobby Congress to
recognize their special cultures and religious practices. Congress responded to these
pressure groups seventy-two years after it had enacted the 1906 Antiquities Act; in 1978,
Congress enacted the American Indian Religious Freedom Act (AIRFA)62 to protect and
preserve the traditional religious rights of American Indians. 63 Still, while AIRFA led to
a change in some governmental policies, it did not provide the protections Native
Americans demanded. For example, Native Americans were not successful in citing the
64
AIRF A as authority for their right to retain their native cultural resources. Although
Native Americans contended that the Act authorized them to obtain the return of Indian
religious artifacts and human remains that were a part of museum collections, the courts
have ruled that the Act only has application to federal agencies and does not call for the
return of Native American objects and human remains. 65 Further, courts held that the
Act is merely a statement of the federal government's policy that it will recognize the
religious beliefs of Native Americans as well as of others. 66
In 1994, amendments to AIRFA did provide more recognition ofIndian cultures in
that the amendments made it legal to use peyote in religious ceremonies in connection
with the practice of traditional American Indian religion. 67 Further, the amendments
were applied in a 1999 case, Bear Lodge Multiple Use Association v. Babbitt,68 to
prevent rock climbers from challenging the Secretary of the Interior's approval of a plan
that would prevent rock climbing on Devil's tower during the month of June when
Indians engage in their Sun Dance and other religious ceremonies.
Many tribes point to the Bald and Golden Eagle Protection Act (BGEP A), 69 which
was enacted in 1940, as a federal act that interferes with their religious practices and thus
violates AIRF A. The Act provides that the bald eagle, commonly known as the
American eagle, or any golden eagle, may not be taken, possessed, sold, purchased,
transported, exported, or imported at any time or in any manner. The Act's prohibitions
extend to any part of an eagle, including its nest or eggs, and apply whether the eagle is
dead or alive. The bald or golden eagle may be taken or possessed "for the scientific or
62. 42 U.S.C. § 1996 (2006).
63. The Act "protect[s] and preservers] ... [the] inherent right of freedom to believe, express, and exercise
the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not
limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials
and traditional rites." 42 U.S.C. § 1996.
64. In addition, the Act did not include a provision that museums return religious artifacts belonging to
Native American tribes.
65. Pursuant to the Act, the Zuni had earlier negotiated unsuccessfully with the Smithsonian Institution to
return certain of their artifacts that they alleged were stolen from their reservation at the turn of the century.
Some Native Americans thought the Smithsonian had an obligation to return such artifacts inasmuch as the
Smithsonian is completely federally subsidized. Some contended museums partially fmanced by the federal
government and those with tax-exempt status also should return Indian artifacts.
66. See e.g. Lyng v. N W. Indian Cemetery Protective Assn., 485 U.S. 439 (1988); Wilson v. Block, 708 F.2d
735 (D.C. Cir 1983), cert. denied, 464 U.S. 956 (1983); Us. v. Top Sky, 547 F.2d 483 (9th Cir. 1976); Crow v.
Gullet, 541 F. Supp. 785 (D.S.D. 1982), aff'd 706 F.2d 856 (8th Cir. 1983). The Supreme Court ruled in Lyng
that AIRFA does not provide a private right of action or any judicially enforceable individual rights. Lyng, 485
U.S. at 448-551.
67. See 42 U.S.C. § 1996a(b).
68. 175 F.3d 814 (10th Cir. 1999), cert. denied, 529 U.S. 1037 (2000).
69. 16 U.S.C. § 668.
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LA WS PROTECTING NATIVE AlvfERICAN CULTURES
53
exhibition purposes of public museums, scientific societies, and zoological parks[,]" but
a permit must be obtained from the Secretary of the Interior. 70
In US. v. Abeyta,71 a resident and member of the Isleta Pueblo and a member of
the Katsina Society (a religious society that engages in traditional ceremonial practices
deeply rooted in ancient Pueblo religion), took parts of a golden eagle to procure its
feathers for use in a religious ceremony of the Katsina Society. It is a tradition and lore
of the Katsina Society to require ceremonial use of eagle feathers and parts. According to
members of the Katsina Society, the eagle is a primary messenger to the spirit world and
the ceremonial use of its feathers permits the living to communicate with the spirit world
beyond. 72 There is a procedure established by the Secretary of the Interior to obtain such
feathers and eagle parts from a depository established by Fish and Wildlife Service,
which originally was established at Pocatello, Idaho?3 However, the individual did not
avail himself of the procedure. When the Department of Interior filed a violation notice
charging the individual with knowing possession of parts of a golden eagle without a
permit, he asserted his right to take parts of the eagle under the Treaty of Guadalupe
Hidalgo and the First Amendment. 74 Although the federal district court in Abeyta ruled
that such a taking was a lawful and protected expression of religious liberty secured by
the Treaty of Guadalupe Hidalgo and by the First Amendment, the Supreme Court held
in US. v. Dion 75 that the BGEPA is read as abrogating the rights of Native Americans to
take bald and golden eagles pursuant to treaties with the United States?6 The Court ruled
that Congress specifically intended to prohibit Native Americans from hunting bald or
golden eagles except pursuant to a permit. Thus, according to the Supreme Court, any
treaty rights of the Native Americans were abrogated. 77
The United States Department of the Interior, through its Fish and Wildlife
Service, currently will issue permits to take and possess eagle parts for religious
70. 16 U.S.c. § 668a. An employee of the Department of the Interior who is authorized toenforce the act
may arrest any person in possession of any part of the bald or golden eagle without a permit. In u.s. v. Smith,
29 F.3d 270 (7th Cir. 1994), the court ruled that scienter is not required for a criminal conviction and affirmed
the conviction of an individual who received eagle feathers in the mail fromafriendinCanada.ld.at 273-274.
The feathers were discovered by U.S. Customs. The court ruled "[f]ederal agents are not restricted by Fourth
Amendment [restrictions on search and sei=es] when they conduct such routine searches." Id. at 273 (citation
omitted).
71. 632 F. Supp. 1301 (D.N.M. 1986).
72. Id. at 1303.
73. Id. The court aclmowledged the importance of protecting and preserving the golden eagle (even though
it was not listed as an endangered species), but held that the "administrative apparatus established to
accorrnnodate [the Native Americans'] religious needs" (the depository at Pocatello, Idaho) was offensive and
ineffectuaL Id. at 1304. Dead eagle parts and feathers currently are sent to the national Eagle Repository in
Corrnnerce City, Colorado. "The Repository receives eagles and eagle parts and distributes them to permit
holders on a first-come first-served basis. Demand [generally] exceeds supply, however, and, [often] . . .
applicants [must] wait three years for an eagle carcass and six to nine months for loose feathers." U.S. v.
Hardman, 297 F.3d 1116, 1123 (10th Cir. 2002) (footnote omitted).
74. Abeyta, 632 F. Supp. at 1302.
75. 476 U.S. 734 (1986).
76. Id. at 744-745.
77. Id. at 746. See also U.s. v. Thirty Eight Golden Eagles or Eagle Parts, 649 F. Supp. 269 (D. Nev.
1986), wherein the goverrnnent sought the forfeiture of eagles and eagle parts obtained from a member of the
Red Lake Band of Chippewa Indians for allegedly violating the Eagle Protection Act. The court ruled that the
act did not violate the tribe members' free exercise rights or the AlRFA. Id. at 280. It further held that the tribe
member failed to establish a violation of a treaty between Red Lake Band of Chippewa Indians and the United
States. Id. at 281.
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purposes but only to members of federally recognized Indian tribes that are eligible to
receive services from the United States Bureau of Indian Affairs (BIA).78 In Us. v.
Hardman,79 the court ruled that excluding sincere practitioners of Native American
religions who were not members of federally recognized tribes from applying for a
permit for possession of eagle feathers would violate the Religious Freedom Restoration
Act (RFRA)80 unless the government can show that limiting permits for eagle feathers to
members of federally-recognized tribes is the least restrictive means of advancing the
government's interests in preserving eagle populations and protecting Native American
culture. Under RFRA, the government cannot substantially burden a person's exercise of
religion unless the government demonstrates that the burden to the person is in
furtherance of a compelling governmental interest and is the least restrictive means of
furthering that compelling interest. 81
In two recent cases, Us. v. Fridai2 and u.s. v. Vasquez-Ramos,83 two federal
appellate courts upheld the BGEPA against challenges that the Act violated RFRA. 84 In
Friday, a member of the Northern Arapaho Tribe of Wyoming was charged with
violating the BGEPA after he shot a bald eagle without a permit for use in a Sun Dance.
The Tenth Circuit Court of Appeals decided that the government has tried to
accommodate Native American religions while still achieving its compelling interests. 85
The Tenth Circuit commented "[t]hat accommodation may be more burdensome than the
Northern Arapaho would prefer, and may sometimes subordinate their interests to other
policies not of their choosing. Law accommodates religion; it cannot wholly exempt
religion from the reach of the law.,,86 In Vasquez-Ramos, two Native Americans who
were not members of federally-recognized Indian tribes, were indicted for possessing
feathers and talons of bald and golden eagles without a permit, in violation of BGEPA.
The Ninth Circuit Court of Appeals also ruled in Vasquez-Ramos that BGEPA does not
violate RFRA. 87 The Ninth Circuit pointed out that the defendants could not complain
that their rights under RFRA were "violated by the government's refusal to expand its
78. See 50 C.F.R. § 22.22 (2008). The tribes are recognized and listed under the Federally Recognized
Tribal List of 1994. See 25 U.S.C. § 479a-1(2006). An applicant for a pennit to obtain eagles or eagle parts for
use in a religious ceremony must attach a certification of emollment in a federally recognized Indian tribe.
79. 297 F.3d 1116.
80. 42 U.S.C. § 2000bb (2006). As noted previously, the Supreme Court ruled in Lyng that the AIRFA does
not provide fora private right of action. Lyng, 485 U.S. at 455. Therefore, tribes have sought protection for
their sacred sites through RFRA.
81. See Hardman, 297 F.3d at 1126. The Ninth Court of Appeals recently ruled in Navajo Nation v. U.S.
Forest Service that the use of recycled wastewater to make artificial snow for a commercial ski resort located in
a national park on mountain considered sacred by at least thirteen tribes would not "substantially burden" the
tribal members' free exercise of religion and that the Forest Service's decision to authorize such use did not
violate the RFRA. Navajo Nation, 535 F.3d at 1063.
82. 525 F.3d 938 (10th Cir. 2008).
83. 531 F.3d 987 (9th Cir. 2008).
84. In an earlier case, U.s. v. Hugs, 109 F.3d 1375, (9th Cir. 1997), the court also ruled that BGEPA does
not violate RFRA. The court recognized that restricting the ability of Native Americans to obtain and possess
eagles and eagle parts "impose[s] a substantial burden on [their] practice of ... religion," but decided that the
BGEPA prescribes the least restrictive means of serving a compelling government interest. ld. at 1378.
85. Friday, 525 F.3d at 960.
86. ld.
87. Vasquez-Ramos, 531 F.3d at 989.
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LA WS PROTECTING NATIVE AlYIERlCAN CULTURES
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( eagle] collection and distribution practices. ,,88
D.
Archaeological Resources Protection Act of 1979
In 1979, Congress enacted the Archaeological Resources Protection Act (ARP A)89
to alleviate some of the problems regarding concerns in Diaz that the Antiquities Act was
unconstitutionally vague in setting out what objects of antiquity were protected. The
ARPA enlarges upon the Antiquities Act and provides for much more substantial fines
90
It was enacted to protect archaeological resources and
for a violation of its provisions.
sites located on public and Native American lands. 91 The Act prohibits the sale,
purchase, transport, exchange, or receipt of any archaeological resources removed
92
without permission from public or Indian land after 1979. The ARPA is more explicit
in its coverage than the Antiquities Act. For example, unlike the Antiquities Act, which
does not define "ruin" or "object of antiquity," the Archaeological Resources Protection
Act specifically defines a protected "archaeological resource" as "any material remains
of past human life or activities which are of archaeological interest" and that is at least
100 years ofage. 93
The ARPA provides more protection for Native American tribes in their attempts
to protect their cultural and funerary objects because it requires a permit to excavate on
Indian lands. A permit can be procured only by the consent of the Native American
94
tribe. Although archaeological resources are artifacts that are at least 100 years of age
and thus would not include religious objects of recent origin, such as religious face
masks, the requirement of a permit from the Native American tribe to excavate upon
Indian land and the more extensive fines under ARPA have halted much of the taking of
95
Native American artifacts and religious objects from Indian lands.
88. Id. at 993.
89. 16 U.S.C. §§ 470aa-470mm (2006).
90. A violator is subject to a fine of$10,000 andlor imprisomneht of not more than one year or, if the value
of the object is more than $500, to a fine of $20,000 andlor imprisomnent of not more than two years. Id. at §
470ee(d). A second violation causes the penalty to be a fine of as much as $100,000 andlor imprisomnent for as
long as five years. Id.
91. Id. at § 470aa(b). The "purpose of [the act] is to secure, for the present and future benefit of the
American people, the protection of archaeological resources and sites which are on public lands and Indian
lands .... " Id. In U.S. v. Austin, defendants, who were indicted under the Archaeological Resources Protection
Act for excavating a Native American archaeological site, alleged that the act was unconstitutionally overbroad
and vague. 902 F.2d 743,744 (9th Cir. 1990), cert. denied, 498 U.S. 874 (1990). The court ruled that the act
was constitutionaL Id. at 745.
92. 16 U.S.C. § 470ee(a)-(b). The act prohibits the excavation, removal, damage, or alteration of any
archaeological resource. Still, under the Act, "[t]he Secretary of the Interior may promulgate regulations
providing for (1) the exchange between . . . universities, museums, or other scientific or educational
institutions, of archaeological resources removed from public lands and Indian lands ... and (2) the ultimate
disposition of such resources [removed pursuant to the Act] ...." Id. at § 470dd. "Any exchange of ...
resources excavated or removed from Indian lands shall be subject to the consent of the Indian or Indian tribe
which owns or has jurisdiction over such lands." Id. The Act requires a permit to excavate upon public or
Indian lands. Id. at § 470cc(a). Persons receiving permits under the Archaeological Resources Protection Act
need not also obtain permits under the Antiquities Act. Id. at § 470cc(h). Native American tribes or their
members need not obtain a permit under either act for the excavation or removal of any archaeological resource
located on their lands if tribal law regulates the excavation and removal of archaeological resources. 16 U.S.C.
§ 470cc(g).
93. Id. at § 470bb(1).
94. Id. at § 470cc(g)(2).
95. In addition, a person who willfully steals or converts for personal use or for the use of another, any
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Native American Graves Protection and Repatriation Act of 1991
In Lyng v. Northwest Indian Cemetery Protection Association,96 a logging
company wanted to build a road through forest areas that Karok, Tolowa, and Yurok
tribes used for religious rites and for the training of their spiritual practitioners. The
Supreme Court ruled that the logging company had the right to build the road and that
AIRFA was nothing more than a restatement of the First Amendment to guarantee
religious freedom for all u.S. citizens. 97 The Court noted that the government had taken
numerous steps to minimize the immediate impact that construction of the road would
have on the Indians' religious activities-such as choosing the route that best protected
sites of specific rituals from adverse audible intrusions and planning steps to reduce the
visual impact of the road on the surrounding country. Thus, the Supreme Court ruled that
construction of the road would not unlawfully burden the Native Americans' exercise of
religion under the AIRFA. 98 This landmark case, decided in 1988, made the Indian tribes
realize they needed more protection.
In 1988, the Senate Select Committee on Indian Affairs held a hearing on legislation
which provided a process for the repatriation of Native American human remains .... The
Panel was split on what to do about human remains which are not culturally identifiable.
Some maintained that a system should be developed for repatriation while others believed
that the scientific and educational needs should predominate .... The Panel concluded that
Federal legislation ... was needed. 99
As a result of the Panel's findings and after further lobbying from Indian tribes, the
Native American Graves Protection and Repatriation Act (NAGPRA)100 was enacted in
1990 and became effective in 1991.
. With the enactment of NAGPRA, Native Americans obtained the legislation they
long thought necessary to secure their religious and funerary objects. The Act requires
federal agencies and museums that have "possession or control over holdings or
collections of Native American human remains and associated funerary objects ... [to]
compile an inventory of such items and, to the extent possible based on information
possessed by [these entities, to] identify the geographical and cultural affiliation of such
items.,,101
property belonging to, or in the custody of, an Indian tribal organization is subject to criminal prosecution. 18
U.S.C. § 1163 (2006).
96. 485 U.S. 439.
97. The United States Forest Service wanted to construct six miles of paved road to the Blue Creek Unit of
the Six Rivers National Forest. The road would provide access to Chimney Rock, which is the sacred high
country to the Yurok, Karok, and Tolowa Indians. Id. at 442. The Native Americans sought a court injunction
to prevent construction of the road. Id. at 443.
98. Id. at 454-455.
99. Pub. L. No. 101-601 (Oct. 15, 1990), 1990 U.S.C.C.A.N. 4367, 4369-4370. Debate regarding the
proper treatment of such remains continues. See infra nn. 113-126 and accompanying text (discussing the
Bonnichsen and Fallon Paiute-Shoshone Tribe decisions).
100. 25 U.S.C. §§ 3001-3013.
101. Id. at § 3003(a). Those museums that receive federal funds and have possession of, or control over,
Native American cultural items are subject to the Act. Id. at § 3001(8). The Smithsonian is exempt from the
Act. Id. Still, the National Museum of the American Indian Act, enacted in 1989, requires the Smithsonian to
return human remains and funerary objects to Native American tribes. 20 U.S.C. § 80q-9 (2006). This Act
established a museum within the Smithsonian to "collect, preserve, and exhibit Native American objects ...."
!d. at § 80q-l(b)(2). The Act also "provide[s] for Native American research and study programs[.]" Id. at
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LAWS PROTECTING NATIVE AMERICAN CULTURES
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Museums had to complete the inventories "in consultation with tribal government
and Native Hawaiian organization officials and traditional religious leaders" within a
five year period from the Act's enactment. 102 Museums were to supply documentation of
existing records for the "purpose of determining the geographical origin, cultural
affiliation, and basic facts surroupding acquisition and accession of Native American
human remains and associated funerary objects . . . .,,103 If a "cultural affiliation of
Native American human remains and associated funerary objects" is established with a
particular tribe, then, ''upon the request of a known lineal descendant of the Native
American or of the tribe[,J" the museum must "expeditiously return such remains and
associated funerary objects.,,104
A review committee, established pursuant to NAGPRA,105 is responsible for
monitoring the inventory and identification process to ensure a fair and objective
consideration and assessment of all available relevant information and evidence. Upon
request from a tribe, it will review and make findings related to the "identity or cultural
affiliation of cultural items or . . . the return of such items.,,106 It is charged with
"facilitating the resolution of any disputes among Indian tribes, Native Hawaiian
organizations, or lineal descendants and Federal agencies or museums relating to the
return of such items .... ,,107 The review committee is responsible for "compiling an
inventory of culturally Unidentifiable human remains that are in the possession or control
of each Federal agency and museum and recommending specific actions for developing a
process for disposition of such remains[.],,108 It makes "recommendations, if
appropriate, regarding future care of cultural items which are to be repatriated.,,109 The
committee consults with Indian tribes, and Native Hawaiian organizations, and museums
on matters affecting the tribes or organizations and consults with the Secretary of the
Interior in the development of regulations to carry out NAGPRA provisions. 11 0
In U. S. v. Kramer,111 the court noted that while Congress enacted NAGPRA to
protect cultural patrimony and to repatriate cultural objects held or controlled by federal
agencies and museums, the Act also applies to individual traders in Native American
112
artifacts.
The court pointed to § 4 of NAGPRA that amended Title 18 of the U.S.
§ 80q-1(b)(3).
102. 25 U.S.C. § 3003(b). The Act provides that the intentional removal or excavation of Native American
cultural items from federal or tribal lands for purposes of discovery, study, or removal, is permitted only if such
items are excavated or removed pursuant to a permit under the ARPA Id. at §3002(c).
103. Id. at § 3003(b)(2). Those museums that failed to comply with the act were subject to civil penalties. Id.
at § 3007.
104. Id. at § 3005(a)(1). The act provides that a museum will not be liable to an aggrieved party for claims
for breach of fiduciary duty or good faith if the museum repatriates in good faith. 25 U.S.C. § 3005(f).
105. Id. at § 3006.
106. Id. at § 3006(c)(3).
107. Id. at § 3006(c)(4).
108. Id. at § 3006(c)(5).
109. 25 U.S.C. § 3006(c)(9).
110. Id. at § 3006(e).
111. 168 F.3d 1196 (10th Cir. 1999).
112. Id. at 1201-1202; see 25 U.S.C. § 3001(3)(D) (defining "cultural patrimony" as "an object having
ongoing historical, traditional, or cultural importance central to the Native American group or culture ... [that]
cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is
a member of the Indian tribe or Native Hawaiian organization and such object shall have been considered
r
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Code to criminalize the trafficking in Native American human remains and cultural
items. l13 The amendment was added in an effort to eliminate the profit incentive
perceived to be a motivating force behind the plundering of such items.
In Us. v. Tidwell,114 an individual was convicted for trafficking in Native
American cultural items and for unlawfully removing archeological resources from
Indian lands. The individual, Tidwell, attempted to sell eleven Hopi masks, also called
Kwaatsi or Kachina, and a set of priest robes from the Pueblo of Acoma. These had been
taken from the Hopi reservation. 115 A federal agent purchased three of the religious Hopi
masks from Tidwell and found two others when the agent searched Tidwell's properties.
The court found that Tidwell knowingly traded in these items and "reject[ed] [his]
vagueness challenge to the NAGPRA[.],,116
One of the most important series of cases construing NAGPRA are the numerous
court rulings in Bonnichsen v. Us. 117 Bonnichsen illustrates the continuing conflict
between most Native Americans who demand repatriation and subsequent burial of
ancient human remains and scientists and others who think the study of ancient remains
should prevail over Indian religious beliefs that may require the burial of these remains.
In Bonnichsen, a set of human remains, believed to be over 9,000 years old, was
discovered in 1996 near Kennewick, Washington, along the bank of the Columbia River,
by a spectator watching a boat race from the shoreline. A local anthropologist applied for
a permit to excavate the skeleton. The Army Corps of Engineers decided the remains
were subject to the NAGPRA and, thus, transferred the remains to an Indian tribe for
reburial. The Corps had disallowed scientific study of the remains. 118 Scientists (the
Bonnichsen plaintiffs) contended the discovery of the Kennewick man was of great
historical and anthropological significance and wanted to study the remains. They filed
suit against the Corps of Engineers to enforce what they contended was a legal right to
study the remains. 119
The court instructed the Corps to consider whether there was more than one wave
of ancient migration to the Americas, or if there were SUb-populations of early
Americans and whether NAGPRA applies to remains or cultural objects from a
inalienable by such Native American group at the time the object was separated from such group" (emphasis
added».
113. To "give teeth" to the Act, Congress amended 18 U.S.C. § 1170(b) "to criminalize trafficking in Native
American human remains and cultural items, in an effort to eliminate the profit incentive perceived to be a
motivating force behind the plundering of such items." Kramer, 168 F.3d at 1201-1202. This provision makes
it unlawful knowingly to "sell[ ], purchaser ], user ] for profit, or transport[ ] for sale or profit any Native
American cultural items obtained in violation of the [NAGPRA]." 18 U.S.C. § 1170.
114. 191 F.3d 976 (9th Cir. 1999).
115. Id. at 978-979.
116. Id. at 982.
117. Bonnichsen v. U.S., 969 F. Supp. 614 (D. Or. 1997); Bonnichsen v. U.S., 969 F. Supp. 628 (D. Or.
1997), rev'd in part, 217 F. Supp.2d 1116 (D. Or. 2002), aff'd, 357 F.3d 962 (9th Cir. 2004), superseded, 367
F.3d 864 (9th Cir. 2004).
118. Bonnichsen, 969 F. Supp. at 617-618.
119. Id. at 618-619. Other plaintiffs in the case were the Asatru, members of the Asatru Folk Assembly,
which is "a legally-recognized church that 'represents Asatru, one of the major indigenous, pre-Christian,
European religions.' " Id. at 618 (quoting the complaint). They "contend[ed] that the man [was] actually one of
their ancestors, and [was] not related to present-day Native Americans at all but rather to Europeans." Id. The
court ruled that the Bonnichsen and Asatru plaintiffs had standing to sue. Id. at 625.
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LAWS PROTECTING NATIVE AA1ERICAN CULTURES
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population that failed to survive and that is not related directly to modem Native
120
Americans.
It also instructed the Corps to determine whether NAGPRA requires
either expressly or implicitly a biological connection between the remains and a
contemporary Native American tribe, whether there must be a cultural affiliation
between the remains and a contemporary Native American tribe and, if so, how that
affiliation can be established if no cultural objects are found with the remains. 121 The
court directed the Corps to determine whether there is evidence of a link, either
biological or cultural, between the remains and a modem Native American tribe or to any
other ethnic or cultural group including those of Europe, Asia, and the Pacific Islands. 122
On remand,123 the district court determined that substantial evidence did not support a
conclusion that the remains were Native American within the meaning ofNAGPRA and
held for the scientists. This decision was affirmed upon appeal by the Ninth Circuit Court
of Appeals. 124 The Ninth Circuit ruled that human remains must bear some relationship
to a presently existing tribe, people, or culture to be "Native American" within the
meaning of NAGPRA. The Ninth Circuit decided that no reasonable person could
conclude from the record that Kennewick Man is ''Native American" under
NAGPRA. 125
In determining affiliation with a current Native American group, the court in
Fallon Paiute-Shoshone Tribe v. US. 126 held to be arbitrary and capricious a
determination by the Bureau of Land Management (BLM) that ancient human remains
found in a cave adjacent to tribal land were not affiliated with any modem-day Native
American tribes. 127 The court noted that after a finding of non-affiliation, interested
Native American tribes are permitted to provide their own evidence, both scientific and
cultural, in their attempt to demonstrate affiliation. 128 The Tribe in this case contended
120. Bonnichsen, 217 F. Supp. 2dat 1136-1137.
121. ld. at 1146-1150.
122. ld.
123. ld.
124. Bonnichsen, 367 F.3d 864, 882 (9th Cir. 2004).
125. ld.
126. 455 F. Supp. 2d 1207 (D. Nev. 2006).
127. ld. at 1224. The remains were found in 1940 during an excavation near Fallon, Nevada, in a place
mown as Spirit Cave. The most important find in the excavation was the well-preserved, partially mummified
body of a man now mown as the Spirit Cave Man. The find was removed from the cave and analyzed. Upon
initial review, it was believed that the Spirit Cave Man remains were between 1,500 and 2,000 years old.
However, as part of the inventory and identification process required after NAGPRA was enacted, radiocarbon
dating was authorized on the remains. "The dating [was] completed in 1994 or 1995 [and] showed that the
initial estimate for the age of the bones ... was significantly flawed. The remains were, in fact, nearly 10,000
years old and, accordingly, were a significant scientific find." ld. at 1210. The scientific community made
several requests to study the remains after the discovery of their age. "Around this same time, [tribes] began
making inquiries about repatriation of the remains." ld. In 1996, "the Tribe requested that BLM temporarily
inter the remains and cease all testing. The Tribe believe[d] that it [was] the caretaker of the Spirit Cave Man
remains and that distmbing the burial site of a deceased, such as the Spirit Cave Man, carries negative
repercussions." ld.
128. Fallon Paiute-Shoshone Tribe, 455 F_ Supp_ 2d at 1217. The court set out the general statutory scheme
for dealing with remains such those found in the cave:
First, the government agency completes, while engaging in appropriate consultation with interested
Native American tribes, a study of the remains using the scientific evidence it has available along
with the cultural and traditional evidence provided by the tribes. This process is completed openly,
with the tribes having full access to the government's process and procedure. When the
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that, once it retained its experts, BLM shut it out of the decision-making process. The
court ruled that ''NAGPRA require[d] BLM to fully and fairly consider [the Tribe's]
evidence and to uphold or reverse its determination of non-affiliation based on a
reasoned and coherent discussion of the evidence and its reasons for believing or
disbelieving [affiliation].,,129 Because this did not occur, the court ruled that BLM's
determination was arbitrary and capricious. 130 The court did state, however, that its order
should not be read to mandate a fmding of affiliation. 131
IV. UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY EXPORTED CULTURAL
OBJECTS OF 1995
NAGPRA has also set a precedent with museums on an international level to
encourage the repatriation of cultural objects to indigenous communities. It is
comparable to a 1995 international convention on the repatriation of cultural property
generally, the UNIDROIT Convention on Stolen or Illegally Exported Cultural
Objects. 132 This Convention, which endorses the repatriation of cultural property on an
international scale, also addresses "claim [s] for restitution of a sacred or communally
important cultural object [that belongs] to and [is] used by a tribal or indigenous
community .... ,,133
The Diplomatic Conference for the adoption of a UNIDROIT Convention on
Stolen or Illegally Exported Cultural Objects met in Rome in June of 1995 with the
objective of improving the preservation and protection of the international cultural
heritage in the interest of all peoples. 134 Drafters of the Convention were conscious that
a process was needed to "enhance international cultural co-operation" and to provide and
"maintain a proper role for legal trading and inter-State agreements for cultural
exchanges.,,135 Their project, this international convention, reflects an international
policy to protect the world's cultural properties and a general philosophy of the
international community that unique remnants of earlier artistic periods belong to their
homeland.
The UNIDROIT Convention mandates the return of a stolen cultural object to the
original owner or country136 while NAGPRA requires repatriation of cultural properties
to an affiliated tribe. The UNIDROIT Convention also requires the return to a tribal or
government's evidence cannot demonstrate affiliation, interested Native American tribes are given
an opportunity to provide their own scientific evidence as well as any further relevant cultural or
traditional evidence in an attempt to demonstrate by a preponderance of the evidence that the
remains are in fact affiliated with their tribes. The government should then review that evidence and
update its findings accordingly. If the remains are then found to be affiliated, they should be
repatriated. If not, the remains are effectively placed in the care of the government until such time as
an appropriate regulation for their pennanent placement is promulgated.
Id. at 1218.
129. Id. at 1225.
130. Id.
131. Id.
132. UNIDROIT, supra n. 13.
133. Id. at art. 3(8).
134. Id. at preamble.
135. Id.
136. The Convention does not require that a theft be proven. Id. at art. 3(1).
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LAWS PROTECTING NATIVE AMERICAN CULTURES
61
indigenous community of a cultural obj ect made by a member or members of that tribal
or indigenous community for traditional or ritual use.
The UNIDROIT Convention provides for time limitations on claims for restitution
but does not require due diligence on the part of claimants. 137 "Any claim for restitution
must be brought within a period of three years from the time when the claimant knew the
location of the cultural object and the identity of its possessor, and in any case within a
period of fifty years from time ofthe theft. ,,138 However,
[any] cultural object fonning an integral part of an identified monument or archaeological
site, or belonging to a public collection, shall not be subject to time limitations other than a
period of three years from the time when the claimant knew the location of the cultural
· andth'd'
ob~ect
e 1 entIty 0 f'Its possessor. 139
Further, each nation "may declare that a claim is subject to a time limitation of 75 years
or such longer period as is provided in its law.,,140 The NAGPRA does not prescribe a
time limitation on tribal claims. 141
As noted previously, a court has ruled that a purchaser of Indian artifacts must
demonstrate due diligence to acquire good title to the artifacts as a purchaser in good
faith.142 NAGPRA does not consider a covered museum to have been an innocent
purchaser of Indian artifacts or funerary objects. Because of NAGPRA provisioIl:s, a
museum generally cannot acquire good title to Indian artifacts. The NAGPRA requires
covered museums to repatriate Native American artifacts unless they can show a "right
of possession.,,143 A "right of possession" is "possession obtained with the voluntary
consent of an individual or group that had authority of alienation. ,,144
The notion of an innocent purchaser has relevance under the UNIDROIT
Convention only with respect to the issue of whether a current possessor of stolen or
137. UNIDROIT, supra n. 13, at art. 3.
138. Id. at art. 3(3).
139. Id. at art. 3(4). The UNIDROIT Convention includes as a "public collection," which is not subject to
time limitations other than the three year limitation period, inventoried or otherwise identified cultural objects
owned by religious institutions and other institutions established for "an essentially cultural, educational or
scientific purpose" and recognized by a nation as serving the public interest. See id. at art. 3(7).
140. Id. at art. 3(5). The Convention provides that a claim for restitution of a cultural object displaced from a
monument, archaeological site or public collection also is subject to that time limitation. See generally
UNIDROIT, supra n. 13.
141. See Pueblo of San Ildefonso v. Ridlon, 103 F.3d 936 (10th Cir. 1996) (where the court ruled that the
date and place restrictions on items recoverable under NAGPRA do not apply in a repatriation action against a
federally funded museum).
142. See Williams, 88 F.3d 614.
143. 25 U.S.C. § 3005(c).
144. Id. at § 3001(13).
The original acquisition of Native American human remains and associated funerary objects which
were excavated, exhumed, or otherwise obtained with full knowledge and consent of the next of kin
or the offi.cial governing body of the appropriate culturally affiliated Indian tribe or Native
Hawaiian organization is deemed to give a right of possession to those remains.
Id.
If a known lineal descendant or an Indian tribe or Native Hawaiian organization requests the return
of Native American unassociated funerary objects, sacred objects or objects of cultural
patrimony ... [the] agency or museum shall return such objects unless it can ... prove that it has a
right of possession to the objects.
Id. at § 3005(c).
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illegally exported cultural objects is entitled to compensation. The Convention provides
for compensation to a possessor of a stolen cultural object who is required to return the
object if the possessor "neither knew nor ought reasonably to have known that the object
was stolen" and can prove "due diligence when acquiring the object.,,145 Thus, while the
UNIDROIT Convention does not impose due diligence upon a claimant of cultural
property, it does impose a due diligence requirement upon a bona fide possessor who
seeks compensation after being required to return a cultural object. In determining
whether a possessor exercised due diligence, the Convention provides that the following
circumstances regarding the acquisition must be considered:
character of the parties, the price paid, whether the possessor consulted any reasonably
accessible register of stolen cultural objects, and any other relevant information and
documentation which it could reasonably have obtained, and whether the possessor
consulted accessible agencies or took any other step that a reasonable person would have
taken in the circumstances. 146
"In determining whether the possessor knew or ought reasonably to have known that the
cultural object had been illegally exported . . . the absence of an export certificate
required under the law of the requesting State [must be considered].,,147
The 1995 UNIDROIT Convention prescribes a means to effectuate the principles
set out in the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the
Illicit Import, Export, and Transfer of Ownership of Cultural Property. The American
Association of Museums (AAM) recently reaffirmed its endorsement of the principle
concepts of the 1970 UNESCO Convention in its 2008 Standards Regarding
Archaeological Material and Ancient Art by recommending that museums have
documentation to demonstrate that cultural objects in their collections were out of their
"probable country of modem discovery by November 17, 1970, the date on which the
[1970 UNESCO Convention] was signed.,,148 If Congress will acknowledge the
precedent NAGPRA has established and will follow its ratification of the principles set
out in the 1970 UNESCO Convention,149 and its ratification in 2008 of the 1954 Hague
Convention for the Protection of Cultural Property in the Event of Armed Conflict, with
ratification of the 1995 UNIDROIT Convention, which embodies and embellishes the
principles of the 1970 UNESCO Convention, it would exert immense influence
internationally on efforts to protect the cultural heritage of humanity.
The repatriation requirements set out in the 1995 UNIDROIT Convention are less
precise than those in NAGPRA, wherein Congress sanctioned the complete and
unequivocal repatriation of Native American cultural and funerary objects to affiliated
tribes. Congress has rejected any efforts to point to NAGPRA as congressional
145. Unidroit, supra n. 13, at art. 4(1). Article 4(2) of the Convention provides that "reasonable efforts shall
be made to have the person who transferred the cultural object to the possessor, or any prior transferor, pay the
compensation where to do so would be consistent with the law of the State in which the claim is brought." Id.
at art. 4(2).
146. Id. at art. 4(4).
147. Id. at art. 6(2).
148. American Assn. of Museums, Standards Regarding Archaeological Material and Ancient Art 1 (July
2008) (available at http://www.aam-us.orglmuseumresources/ethicslindex.cfm).
149. In 1983, Congress enacted the Convention on Cultural Property Implementation Act to implement part
of the 1970 UNESCO Convention into domestic law. See 19 U.S.C. §§ 2601-2613 (2006).
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LAWS PROTECTING NATIVE AMERICAN CULTURES
63
endorsement for the repatriation of other artworks and/or antiqUItIes. In enacting
NAGPRA, Congress stated that the Act "reflects the unique relationship between the
Federal Government and Indian tribes and Native Hawaiian organizations and should not
be construed to establish a precedent with respect to any other individual, organization,
or foreign government.,,150 However, congressional ratification of the 1995 UNIDROIT
Convention would make a statement to the international art and antiquities community
similar to the one it made to Native Americans in 1990 when it enacted NAGPRA: that it
recognizes and respects the property, history, and cultures of others. Its ratification of the
UNIDROIT Convention would have the affirmative effect of assisting States rich in art
and archeology in protecting their cultural patrimony from the illicit international art and
antiquities market.
V.
SUMMARY AND CONCLUSIONS
Congress began a program to protect historical sites and monuments, including
Indian sites, in the early part of the 20 th century. However, a lack of recognition for the
unique and separate Native American cultures and the continuing insensitive treatment of
Indian tribes throughout most of that century led Indian nations to lobby Congress for
recognition and for the return of Indian human remains and funerary objects that were
housed in U.S. museums. Native American tribes achieved success in 1990 when
Congress enacted NAGPRA to provide for the complete and total repatriation of these
items to affiliated tribes.
While tribal nations continue to be hopeful for more complete congressional and
judicial endorsement of their laws and practices, Congress and the courts presently do
give recognition and respect for the religious practices and cultures of Native Americans.
Various federal departments, agencies, and other instrumentalities responsible for
administering relevant laws now must evaluate their policies and 'procedures in
consultation with native traditional religious leaders in order to determine appropriate
changes necessary to protect and preserve Native American religious cultural rights and
practices. 151 Further, both NAGPRA and ARPA prohibit a person from excavating on
Indian land without a permit from the Indian tribe, and ARPA provides substantial
penalties for violating its provisions.
Protection of Indian practices and culture continues in the form of requirements for
excavating on Indian lands. These are summarized as follows:
1. An individual or entity must obtain a r:ermit pursuant to the ARPA or the 1906
Antiquities Act to excavate on Indian lands. 1 2
2. If, pursuant to a permit to excavate, Indian artifacts are found on Indian lands, NAGPRA
. that Indi an tn·bes be gIven
.
. to rec1·
requITes
an opporturuty
arm th em. 153
150. 25 U.S.C. § 3010.
151. As noted previously, in Bear Lodge, 175 F.3d 814, the Tenth Circuit Court of Appeals ruled that rock
climbers could not challenge the Secretary of the Interior's approval of a plan that would prevent rock climbing
on Devils Tower, which is a national monument that is the place of creation and a site of religious practice for
many American Indians during the month of June when Indians engage in the Sun Dance and other
ceremonies. Id. at 882.
152. See 16 U.S.C. § 470cc.
153. See 25 U.S.C. § 3002(d); 25 U.S.C. § 3005(a)(4).
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3. If a tribe declines possession, the Secretary of the Interior must confer with Native
American and scientific and museum groups as to the disposition of the remains and
154
·
ob~ects.
NAGPRA's absolute and unconditional repatriation requirements provide for a
much more extensive repatriation paradigm than that imposed on member nations to the
1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Property, which
does not require retroactive repatriation and prescribes some time limitations on claims
for return of cultural property. Still, Congress endorsed unconditional repatriation in
NAGPRA while it has refused to ratify the 1995 UNIDROIT Convention. The example
Congress posited by its enactment ofNAGPRA, that museums and federal agencies must
return human remains, funerary, and cultural objects to affiliated tribes, along with the
goodwill the mandate has elicited, should be expanded internationally. The positive
message NAGPRA conveys should lead to an acknowledgment that there also is good
reason to repatriate stolen and illegally exported cultural property to their original
owners and countries of origin.
154. See 25 U.S.C. § 3002(b).